Why Do States Grant Asylum? (original) (raw)
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European Migration Policies and the Rights of Asylum
2016
The European Union is confronted with a deep migration crisis, at a time when the EU has changed from being a source of stability and security into becoming a generator of political instability and economic chaos. This chapter outlines the main parameters of Europe’s immigration issue and the right of asylum. It presents the European migration policies of the last decade and traces the reasons behind its complete or near failure. The European Union takes into account how to rid itself of migrants through certain measures of tightening the law on asylum, and closing the borders. The result is that those states which had most fought against borders and walls and were committed to them being permanently eliminated, are now rushing to raise them again. Meanwhile, the security threat that has increased across the whole Union due to the mismanagement of migration. The European Union has spent years developing the Common European Asylum System (CEAS). The aim of CEAS is to ensure the rights of asylum seekers by law. The system establishes minimum standards and procedures for processing and assessing claims for asylum and for the treatment of asylum seekers and those granted refugee status. Nevertheless, a large number of EU member states have yet to correctly implement these standards. Instead there is a collage of 28 different asylum systems producing uneven results? Finally, this chapter examines the EU asylum system itself. The chapter analyses how national asylum systems interact under the law of the EU, applying the criteria of the distribution of state responsibility to investigate asylum applications. This chapter addresses two key concepts in the development of European asylum law in particular: the concept of solidarity and the concept of trust, the application of which has been demonstrably weak in the European Union asylum system.
The Contemporary International Law Status of the Right to Receive Asylum
International Journal of Refugee Law, 2014
Clearly a state has a right to expel aliens generally, and a state has a right to grant asylum to aliens, but the question is whether an individual has a right to asylum opposable to the state’s right to expel. In the literature, it is commonly understood that no such right exists. Treaty obligations discussing a “right to asylum” are understood in various ways, generally not to provide for a right to receive asylum but apply for it. However, the past few decades have shown a growth in conventions addressing asylum, especially, but not limited to, the European context. With refugee flows being an inherently international concern with a need for durable solutions, increasingly refugees are being assimilated to refugee-seekers. States are reacting or anticipating these issues by adopting domestic rights to asylum, at least for individuals qualifying as refugees. These trends suggest an evolving international consensus on opinio juris and state practice that refugees must receive asylum. Thus, it appears that the right to asylum for refugees exists under customary international law. The paper will proceed broadly in two sections viewing the issue from different perspectives. In the first section, the paper will begin by examining the “right to asylum” from the perspective of the states, the authors of the Refugee Convention and similar agreements. The paper will conclude that the “right to asylum” in those agreements is directed at states, not individuals. In essence, states have a right vis-à-vis other states to grant asylum to aliens and not have that act be viewed as hostile. However, this right of the state does not necessarily exclude a right of individuals to receive asylum if convention or customary international law also demand it. Accordingly, the second section examines the right of the individual to receive asylum. In the first sub-section, the author looks at conventional law and in the following sub-sections he looks at customary international law, specifically state practice and opinio juris. In the conclusion, the author argues that, although there is a state right to grant asylum, there is also an individual right to receive it in certain circumstances. This conclusion is based on widespread and consistent practice granting asylum as an obligatory consequence of refuge.
The Europeanization of Asylum Policy: From Sovereignty via Harmony to Unity
To what extent do asylum decisions within the EU amount to an EU asylum policy? The paper tackles the question within a simplified and amended framework recommended by Lasswell and McDougal's policy analysis (the amendment is that the postulation of basic public order goals has three interrelated functions: the explication of evaluative assumptions entertained by a policy analyst; the articulation, appraisal, revision and ordering of the assumptions, which result in a prescription of public order goals; the identification and ordering, from among a potentially endless flow of empirical data, of those decisions that conform to the postulated goals). The principal postulated goal is human dignity or a free society. Subordinate goals include the right to life, the right to freedom, the rule of law, and solidarity. The analysis of tendencies in decision, although exhaustive, does not suffice to give an unequivocal answer to the principal question. A major reason is a discrepancy between the EU treaties and directives on asylum, which allegedly are the basic and the implementing EU instruments respectively. However, it is apparent that minimum standards are an insufficient incentive for the proper harmonisation of national asylum systems, and leave a too high level of discretion to the member states regarding the transposition of the legal acquis into national systems. The Europeanization of asylum policy has not been inspired by humanitarian considerations, but by policies of the member states to discourage and prevent asylum seekers to access state territories on the one hand, and to promptly and efficiently process asylum applications on the other. European institutions will probably keep putting efforts into the building of the Common Asylum System and harmonisation of national asylum systems, particularly in the direction of the establishment of a single procedure and uniform refugee status at the level of the entire Union. However, the question
Political Asylum and Sovereignty-Sharing in Europe
Government and Opposition, 2008
In focusing on the relationships between asylum recognition rates and the different institutional arrangements through which European states share or preserve their sovereignty, this article seeks to show how sovereignty-sharing affects the right to political asylum in practice. After a qualitative overview of variations in sovereignty-sharing forms, the article presents the results from a multiple regression analysis of the relationship between legal and institutional frames of asylum decision-making in 17 West European countries (EU-15, Norway and Switzerland) and the asylum recognition rates in these countries. The article ends with a brief assessment of the significance of the results for a potential policy change in the European Union.
Chapter 35. Asylum Under Pressure: international Deterrence and access to asylum
The Migration Conference 2017 Proceedings, 2017
In order to respond to the refugee crisis or control the migration flows, States may take certain measures to keep migrants out of reach of their borders. These measures involve push-backs, interception at high seas, erecting fences, bilateral agreements for off-shore processing etc., under national security reasons or for mainting public order. All these measures are referred to as deterrence strategies, they do not conform with States' obligations under International Human Rights Law and they result in preventing refugees from having access to asylum. Through treaties, customary law and case law, the principle of non-refoulement has an extra-territorial application. States are bound by the principle of non-refoulement by the moment States agents exercise effective control upon migrants -potential refugees. Unless States cooperate with each other, share the burden, build -up their capacity for fair asylum procedures and comply with International human rights law obligations, refugees cannot have access to international protection and enjoy their fundamental rights.
The 1951 Refugees Convention constitutes the core instrument of international refugee law. In the years since its adoption, signatory states have come to exploit an apparent loophole: nothing in the text prevents a state from transferring asylum seekers to other states that it deems to be safe. The text does not indicate how a state is to determine whether another state is safe. Academic literature and guidance from the United Nations Human Rights Committee have sought to fill this void, enumerating factors that states should consider before transferring an asylum seeker elsewhere. But guidance and academic commentary do not on their own constitute international law. States are not bound by academic commentaries or guidance of United Nations bodies. While states comply with some portion of the non-binding guidance, they do not comply with it in its entirety. This study describes the current state of international refugee law as it operates in state practice, not the idealized form of international law described in legal journals. In particular, decisions of domestic courts interpreting the 1951 Refugees Convention provide strong evidence of what states view as legally obligatory in this context. For that reason, this study surveys how various domestic courts interpret and apply the 1951 Refugees Convention to constrain their respective states in the arena of transferring asylum seekers to other states. The result is a standard that is authoritative and that has been incorporated into the state practice of the leading rule of law nations. Where states fail to live up to their international obligations to asylum seekers and refugees, it is this standard that they should be held to rather than the admirable but perhaps overly ambitious standard embodied in the non-binding guidance.
European Migration Policies and the Right of Asylum
2016
The European Union is confronted with a deep migration crisis, at a time when the EU has changed from being a source of stability and security into becoming a generator of political instability and economic chaos. This chapter outlines the main parameters of Europe's immigration issue and the right of asylum. It presents the European migration policies of the last decade and traces the reasons behind its complete or near failure. The European Union takes into account how to rid itself of migrants through certain measures of tightening the law on asylum, and closing the borders. The result is that those states which had most fought against borders and walls and were committed to them being permanently eliminated, are now rushing to raise them again. Meanwhile, the security threat that has increased across the whole Union due to the mismanagement of migration. The European Union has spent years developing the Common European Asylum System (CEAS). The aim of CEAS is to ensure the r...
Pressure on national asylum systems due to increasing numbers of asylum seekers and the opening of internal borders have led to cooperation at a common level since 1980. However, the EU laws and policies on asylum have mainly focused on the reduction of asylum claims rather than creating a fair and accessible asylum system. This has raised a concern whether it is compatible with the commitment of the EU to protect the right to seek refugee status within its territory. The main aim of this dissertation is to analyse the EU common asylum policy and its compatibility with the right to seek asylum under the Universal Declaration of Human Right. To this aim, after describing and analysing on the international protection regime and its limitations for refugees, the thesis will extensively examine the EU asylum policy and its restrictive policies. These restrictive policies under the non-arrival and non-admission policies such as visa requirements, carrier sanctions, the safe third country concept and readmission agreements are aimed at preventing asylum seekers from arriving at EU territory and from accessing asylum determination procedures. In analysing these policies, this thesis will demonstrate how the EU has developed strict policies to be protected from refugees entering its territory and undermined the right to seek asylum and its non-refoulement obligation. This thesis therefore, suggests that the EU should support and encourage stability and the development of refugee-producing countries rather than focusing on discouraging asylum seekers with restrictive policies.
DOAJ (DOAJ: Directory of Open Access Journals), 2020
New York Knopf, 1985), p. 294 where he stated that 'the Treaty of Westphalia (…) made the territorial state the cornerstone of the modern state system'. 11 In the case of international protection the continuing relevance of the nation State is proven by the fact that in case of internal flight alternatives the asylum-seeker might be rejected; see also Robert